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June 14, 2008

Good thoughts on good and bad works at sentencing

Professor Carissa Byrne Hessick now has posted here on SSRN a great new paper on a sentencing topic I have always found very interesting (and underexplored in the academic literature). This piece is titled "Why are Only Bad Acts Good Sentencing Factors?" and here is the abstract:

Few pieces of information play a larger role in determining a criminal offender's sentence than her prior criminal history. The notion that an offender's prior bad acts ought to be considered an aggravating sentencing factor enjoys near-universal acceptance. But fewer jurisdictions appear to consider an offender's prior good acts (such as honorable military service or charitable works) as a mitigating factor at sentencing. This Article discusses the potential relationship between aggravating and mitigating sentencing factors. It also explores whether, in light of the overwhelming consensus that a prior bad act is aggravating, there is a principled reason that a sentencing system could fail to treat a prior good act as mitigating.

Though I am still thinking about what to think about Chief Judge Alex Kozinski's kinky computer activities (basics here and here), there is a much more consequential federal sex offense story brewing concerning the SONRA provisions of the Adam Walsh Act. Specifically, as detailed in this local story, another federal district judge has found constitutional problems with the Act:

A federal judge in Missoula this week ruled that a provision of the national Sexual Offender Registration and Notification Act is unconstitutional and dismissed a felony indictment accusing one sex offender of failing to register in Montana.

In a 44-page opinion issued Wednesday, U.S. District Judge Donald W. Molloy ruled that Congress cannot federally criminalize a sex offender's failure to register in a state-run database. Congress therefore exceeded its authority under the Interstate Commerce Clause by making it a federal crime for a sex offender to travel to another state and fail to re-register in that jurisdiction, Molloy wrote.

Jessica T. Fehr, a spokeswoman for the U.S. Attorney's Office in Montana, said the government intends to appeal the decision to the 9th U.S. Circuit Court of Appeals. “The U.S. Attorney's Office will be recommending to the Office of the Solicitor General that we do appeal Judge Molloy's decision,” Fehr said Friday. The U.S. Attorney's Office must receive authorization from the solicitor general before appealing a decision.

According to Molloy's order, no other appellate court has ruled on the issue, and his decision could potentially clear the way for other similar indictments to be dismissed on the same grounds. “If the factual scenario fits in other cases, we will try to get those cases dismissed,” said Tony Gallagher, executive director of the Federal Defenders of Montana. “It's a big decision and it's a highly tactical point. We went after the indictment full bore with three motions to dismiss. We raised everything we possibly could, and Judge Molloy ruled that Congress went beyond its authority under the Commerce Clause in this particular scenario.”

The scenario at hand involves Bernard L. Waybright, 58, who in May 2004 was convicted of a misdemeanor sex crime in a West Virginia state court. As part of his sentence, he was required to register under the federal Sexual Offender Registration and Notification Act, which keeps track of where sex offenders reside. He then traveled to Montana on several occasions, but did not re-register with local law enforcement authorities, as required by federal law.

In his order, Molloy dismissed the indictment without prejudice, ruling that the provision “would allow Congress to federalize nearly any local criminal offense simply by making it a crime for someone who committed the offense to travel in interstate commerce at some point in his life.”

I cannot yet find a copy of Judge Molloy's 44-page opinion in Waybright, but I will post it as soon as I get my hands on an electronic version.

Faced with what they call severe budget shortfalls, several public defender offices across the country say they may soon begin turning away thousands of poor criminal defendants.

Statewide public defenders in Kentucky and Minnesota and local offices in cities such as Atlanta and Miami say budget cuts are forcing them to fire or furlough trial lawyers, leaving the offices unable to handle misdemeanor and, in some instances, serious felony cases.

The cuts leave states scrambling to find a solution to a constitutional dilemma: The Sixth Amendment requires the government to either provide poor defendants with lawyers or release them. "It is an impending legal crisis in our state," Joseph Lambert, the chief justice of the Kentucky Supreme Court, told ABC News.

June 13, 2008

Should defendants facing long sentences for downloading child porn be filing Kozinski claims?

There are so many interesting questions and perspectives one can have regarding "Porngate" involving Ninth Circuit Chief Judge Alex Kozinski. (I wonder if I am the first to call this controversy "Porngate" (first discussed here); perhaps someone who reads all the media coverage linked here can check.) Of course, my chief questions and perspectives in response to Chief Judge Kozinski's kinky on-line activities relate to sentencing.

Specifically, some of the most challenging post-Booker federal sentencing cases, according to lots of federal judges and recent opinions, involve prominent persons who have led upstanding lives, except for having downloaded the wrong kind of dirty pictures from the Internet. I suspect (and hope) Chief Judge Kozinski knew better than to download illegal child porn, but his behavior and comments suggest that he believes it is fun and harmless to post and swap a certain type of dirty pictures. Though the activities of many subject to federal prosecutions are much different and obviously more severe, some actions by federal defendants seem only different from Chief Judge Kozinski's actions by a matter of degrees.

Consider, for example, the recent Miller case from the Third Circuit (noted here). In Miller, the defendant had a large library of legal adult porn on a zip drive, but it turned out that a handful of images the defendant downloaded (though less than 1% of the total) were illegal. After losing at trial, Mr. Miller was sentenced to 46 months in federal prison. And there are, I believe, numerous other similar cases in which defendants have been sent to federal prison for a long time for behavior that does not seem too much different that what Chief Judge Kozinski has been doing for quite some time.

Going forward, this makes me wonder if we will start seeing "Kozinski claims" at the sentencings of persons prosecuted for downloading the wrong kind of dirty pictures. The argument would be, I think, that if Chief Judge Kozinski did not think he was doing anything wrong and largely gets a pass for this kind of behavior, then a defendant who engaged in similar (but worse) on-line activities should not spend years behind bars.

Am I stretching here, dear readers, or are folks involved in some federal porn downloading prosecutions having some of the same thoughts?

Another high in depriving liberty: 7.2 million under CJ control

As detailed in this Washington Post piece, the "number of people under supervision in the nation's criminal justice system rose to 7.2 million in 2006, the highest ever." Here are more specifics and reactions:

According to a recently released report released by the Bureau of Justice Statistics, more than 2 million offenders were either in jail or prison in 2006, the most recent year studied in an annual survey.

Another 4.2 million were on probation, and nearly 800,000 were on parole. The cost to taxpayers, about $45 billion, is causing states such as California to reconsider harsh criminal penalties. In an attempt to relieve overcrowding, California is now exporting some of its 170,000 inmates to privately run corrections facilities as far away as Tennessee....

Tim Lynch, director of the criminal justice project for the libertarian Cato Institute, called the numbers "scandalous" and said states have resorted to "tinkering" to solve prison overcrowding. "I think these numbers demonstrate that we've lost our way," Lynch said. "We've lost our way when our laws require such a massive scale of incarceration."

Lynch and others said the drug war is destroying American inner cities almost as much as the drug trade. "When you lock up a bank robber, a child molester or a mugger, you're removing a career offender from the street. "When you lock up a drug dealer, he is immediately replaced," Lynch said. "We tried this with alcohol during Prohibition and it didn't work. We're not reaching the same conclusion with the drug war. It's slowly sinking in, but it will take politicians some time to turn this around."

Capital punishment, a love story?!?

A remarkable love story is emerging just before a scheduled execution, as reported here in the Austin American-Statesman:

The capital murder conviction of Charles Dean Hood, who is set to be executed Tuesday, should be overturned because the judge at his 1990 trial was secretly dating the district attorney, an appeal filed Thursday alleged.

Judge Verla Sue Holland, now retired, could not have provided Hood with a fair and impartial trial while involved in a long-term intimate relationship with then-Collin County District Attorney Tom O'Connell, the appeal said. O'Connell played an active role in prosecuting Hood for the double murder that put him on death row.

"The wall of silence that has long protected Judge Holland must now come down," the appeal said. "An intimate relationship ... not only implies a special willingness of the judge to accept the prosecutor's representations and arguments, but also suggests extensive personal contacts beyond the confines of the courtroom." Neither Holland nor O'Connell were married at the time, but they worked to keep the relationship secret, the appeal said.

June 12, 2008

Irizarry is interesting, but is it important or just iterant?

The three short opinions in Irizarryare all quite interesting (basics here), though I am not sure upon first read whether the ruling is very important or just a review of matters established by modern Booker progeny like Gall and Kimbrough. Here is key language from the majority opinion by Justice Stevens that serves to emphasize the departure/variance distinction:

“Departure” is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines....

Although the Guidelines, as the “starting point and the initial benchmark,” continue to play a role in the sentencing determination, see Gall, 552 U. S., at ___ (slip op., at 11), there is no longer a limit comparable to the one at issue in Burns on the variances from Guidelines ranges that a District Court may find justified under the sentencing factors set forth in 18 U. S. C. §3553(a) (2000 ed. and Supp. V).

In turn, Justice Breyer in dissent fights against making a big deal about the departure/variance, though he does so primarily to continue his effort to promote the primacy of the guidelines. And Justice Alito's silence in this case is an especially notable component of the division among Justice still fighting over the Booker's meaning and impact (including Justice Thomas, who write again to attack the Booker remedy).

So, dear readers, as I take time for a second look, do you think Iriazarry is important or just iterant?

A split decision (and a victory, of sorts) in SCOTUS Irizarry decision

Though the rest of the legal world will be focused on the dentainee decisions from the Supreme Court today, I have different case and a much shorter opinion to obsess about (while watching golf). As detailed by the SCOTUSblog live blogging:

The Court has released the opinion in Irizarry v. United States(06-7517), on whether a district court must provide a criminal defendant notice of the contemplated grounds for a sentence above the range recommended by the sentencing guidelines. The ruling below, which found for the government, is affirmed.

Justice Stevens wrote the opinion. Justice Breyerdissented, joined by Justices Kennedy, Souter, and Ginsburg.

The full decision (which runs only 18 total pages, including the syllabus) is now available here.

Because I helped with the brief that supported the outcome that was affirmed here, I cannot provide a completely objective assessment of the ruling. But I can note right away the intriguing combination of Justices on each side of the 5-4 ruling, with Justice Stevens being the unusual swing vote in this case. Fascinating stuff that confirms my view that the Supreme Court's work in criminal justice case, and especially in sentencing cases, remains joyfully unpredictable.

SCOTUS rules 5-4 for detainee habeas rights

As detailed in this early post at SCOTUSblog, this morning brings a notable detainee ruling that will bring back talk of a Kennedy court:

In a stunning blow to the Bush Administration in its war-on-terrorism policies, the Supreme Court ruled Thursday that foreign nationals held at Guantanamo Bay have a right to pursue habeas challenges to their detention. The Court, dividing 5-4, ruled that Congress had not validly taken away habeas rights.

Thanks to SCOTUSblog, all 134 pages of the Boumediene can be accessed here. I have other planned obsessive activities today that will keep me from figuring out if anything in this long case will assist in regular criminal practice. Readers are encourage to tell me what I might be missing.

A notable change in one Texan's life and death advocacy

For eight years and 219 executions, Larry Fitzgerald was the face of the nation's busiest execution chamber, a man who watched as men and women were put to death and then, often in the face of tough questions and controversy, explained what had happened.

Now he is on the other side. Retired from the Texas prison system, where he was chief spokesman based at the death chamber in Huntsville, Fitzgerald helps death penalty attorneys trying to keep their clients alive by testifying about life in the state prison system.

Fitzgerald's turnabout does not mean he is a capital punishment foe; indeed, he favors the death penalty in some cases. Yet his new role has prompted criticism from some, including a former warden who called him a traitor.

Michigan editorial follows the money to assail prison priorities

With lean economic times, I expect we may start to see a number of editorials similar to this new commentary from a local Michigan paper. Here are extended excerpts from an effective editorial:

Michigan no longer can afford its hard-as-nails approach to crime and punishment. About 20 cents of every dollar in the state's $9.8 billion General Fund budget is spent on the Department of Corrections. That $2 billion a year may rise to $2.6 billion a year by 2012, the Citizens Research Council of Michigan said last month — unless our state corrects its irrational attitudes about corrections.

Nearly every branch of state government has faced deep budget cuts during Michigan's prolonged economic depression. Our lawmakers, after a year of bloody budget battles, even enacted tax increases last year to help pay for state services.... Yet we continue to spent more and more on a prison system that incarcerates our people at a rate higher than any other Great Lakes State. One-third of state workers are Corrections employees.

Michigan is one of only four states in the nation to spend more on prisons than on its colleges and universities. After years of cuts of state spending on universities and rising prison costs, Michigan now spends $1.19 on Corrections for every $1 spent on higher education, the Pew Center on the States reported in February.

Legislators in Lansing, citing budget concerns, have ratcheted down Gov. Jennifer Granholm's proposed increases in spending in K-12 education.... But when Granholm came out with proposals a year ago to release 5,000 old and sick state prisoners and to reform sentencing guidelines and the state parole system, lawmakers recoiled in horror. Their refusal so far to take a permanent bite out of this budget buster is as irrational as the belief that bulging prisons equal safe streets.

Look: Even with a prison system that has swollen more than 538 percent in the past 34 years, Michiganders are hardly safer than people in the rest of the nation. The rate of violent crime here fell 13 percent between 1981 and 2006; in the nation, violent crime dropped 12 percent.

If you're looking for a big bang for your bucks, taxpayers, it sure isn't in the Michigan prison system.... Michigan's multibillion-dollar experiment in punishing too many crimes with maximum time behind bars has failed.... Why is it that Minnesota, a sister Great Lakes State, spends just 17 cents on prisons for every dollar spent on colleges and universities? Michigan leaders should go there, and find out.

They may learn that the state has different priorities for its money; a different approach to crime and punishment, a far lower incarceration rate. Apply those lessons, and others, here. Spend the money saved on public services that actually work.

Texas back in the execution business

This AP story presents the basic details of Texas' (long-awaited?) return to the business of state killing or killers:

A remorseful convicted killer was executed Wednesday night for raping and killing a Dallas woman 17 years ago, the first prisoner in nine months to be put to death in the nation's most active capital punishment state. Karl Eugene Chamberlain, with a smile on his face, told relatives of his victim, Felecia Prechtl that he wished he "could die more than once."

Chamberlain lived upstairs in the same apartment complex as his victim. In 1991, he knocked on Prechtl's door and asked to borrow some sugar. After she filled the request, he returned with a rifle and the roll of duct tape, attacked the single mother and shot her in the head. Her son, then 5, found her body....

Chamberlain's execution was the first in Texas since September. Executions throughout the country were on hold after the Supreme Court agreed in September to consider a challenge from two Kentucky prisoners who questioned the constitutionality of lethal injection procedures. When the court upheld the method in April, the de facto moratorium was lifted and executions resumed. There were 26 executions in Texas last year, far more than any other state.

Before he was executed, Chamberlain stared directly at Prechtl's son, parents and brother as they stood just a few feet away, looking through a glass window. "We are here to honor the life of Felecia Prechtl, a woman I didn't even know, and celebrate my death," he said. "I am so terribly sorry. I wish I could die more than once."

"I love you. God have mercy on us all," he said as the drugs began taking effect. Still grinning, he blurted out: "Please do not hate anybody because ..." He was unable to finish as he slipped into unconsciousness.

Ina Prechtl, who lost her daughter, said after watching Chamberlain die: "One question I ask myself every day, why does it take so long for justice to be served?"

Beyond the significance of Texas getting back to lethal injection, this execution was notable for another reason explained in this AP piece: the "condemned inmate's last meal request easily was the most extensive of the 405 inmates who preceded him to the death chamber since the state resumed carrying out capital punishment in 1982."

What should we make of Judge Kozinski's porn postings?

A closely watched obscenity trial in Los Angeles federal court was suspended Wednesday after the judge acknowledged maintaining his own publicly accessible website featuring sexually explicit photos and videos. Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, granted a 48-hour stay in the obscenity trial of a Hollywood adult filmmaker after the prosecutor requested time to explore "a potential conflict of interest concerning the court having a . . . sexually explicit website with similar material to what is on trial here."

In an interview Tuesday with The Times, Kozinski acknowledged posting sexual content on his website. Among the images on the site were a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. He defended some of the adult content as "funny" but conceded that other postings were inappropriate.

Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.

Kozinski is one of the nation's highest-ranking judges and has been mentioned as a possible candidate for the U.S. Supreme Court. He was named chief judge of the 9th Circuit last year and is considered a judicial conservative on most issues. He was appointed to the federal bench by President Reagan in 1985.

After publication of an latimes.com article about his website Wednesday morning, the judge offered another explanation for how the material might have been posted to the site. Tuesday evening he had told The Times that he had a clear recollection of some of the most objectionable material and that he was responsible for placing it on the Web. By Wednesday afternoon, as controversy about the website spread, Kozinski was seeking to shift responsibility, at least in part, to his adult son, Yale. "Yale called and said he's pretty sure he uploaded a bunch of it," Kozinski wrote in an e-mail to Abovethelaw.com, a legal news website. "I had no idea, but that sounds right because I sure don't remember putting some of that stuff there."

Sen. Dianne Feinstein (D-Calif.), a member of the Senate Judiciary Committee, expressed concern about Kozinski's website. "If this is true, this is unacceptable behavior for a federal court judge," she said in a statement.

How Appealing and WSJ Law Blog have lots more on this developing story, including links to additional MSM coverage of the controversy. I am not sure what exactly to make of this story, so I am interested in reader reactions either defending or attacking a renown federal judge.

UPDATE: Interesting ruminations can be found at Concurring Opinion in this post, fittingly titled "Judges Gone Wild."

Notable new piece on plea bargaining and white-collar prosecutions

A helpful reader pointed me to this interesting looking new piece on SSRN titled "Plea Bargaining's Survival: Financial Crimes Plea Bargaining, a Continued Triumph in a Post-Enron World." Here is the abstract:

This article examines the war on financial crimes that began after the collapse of Enron in 2001. Although many believed that the reforms implemented following this scandal led to greater prosecutorial focus on financial crimes and longer prison sentences, an analysis of data from 1995 through 2006 reveals that little has actually changed. The statistics demonstrate that the government's focus on financial crimes has not increased and prison sentences for fraud have remained stagnant.

How could this be the case? It is this author's hypothesis that although prosecutors could have chosen to use new statutes and amendments to the United States Sentencing Guidelines passed in the wake of Enron to increase prosecutions and sentences, they did not. Instead, prosecutors are using their new tools to encourage defendants to accept plea agreements that include sentences similar to those offered before 2001, while simultaneously threatening to use these same powers to secure astounding sentences if defendants force a trial. The result is that the promises of post-Enron reforms aimed at financial criminals were hollow and served only to reinforce plea bargaining's triumph.

June 11, 2008

When you got to go (to sentencing), you got to go

This local story, headlined "25 miles from court and in want of a ride, man puts sole into attempt to see judge," highlights one person very motivated to get to court for sentencing:

Early Tuesday morning, Stephen A. Shoemaker discovered, to his dismay, that he didn't have a ride to the Cumberland County Courthouse. The Shippensburg man was supposed to be there at 9:30 a.m. to be sentenced on a drunken-driving conviction. He doesn't have a car or a driver's license. His brother, who was supposed to give him a lift, was a no-show.

So Shoemaker, 33, started walking at dawn. And he kept walking through 90-plus-degree heat for about 25 miles -- with a detour to Carlisle Regional Medical Center -- until he arrived to stand before Judge Edward E. Guido that afternoon. "I got a little bit light-headed. I about passed out," Shoemaker said.

The mix of pluck, stamina and sheer foolishness was something Guido said he'd never seen. "I had no other way to get here," Shoemaker said as he waited for his hearing to begin. "If I hadn't come in, I would have had a warrant out for my arrest." That, he said, probably would have killed his hopes of going full time at a pipe-making plant where he's been working the last few months.

Notable NBA fix tales being told by ref facing sentencing

As detailed in this New York Times article, the documents being generated before the sentencing of former ref Tim Donaghy are generating quite a buzz among folks other than just sentencing fans:

N.B.A. executives and referees are accused of broad misconduct and outright manipulation of game results — including a highly disputed 2002 playoff series — in the latest court filing by the lawyer for the former referee Tim Donaghy.

The charges, outlined by the lawyer John Lauro in a letter filed Tuesday, are the most detailed and the most provocative to emerge since last July, when Donaghy was arrested and charged with conspiring with gamblers. Donaghy has pleaded guilty and will be sentenced next month.

The accusations are contained in a four-page letter, sent to United States District Judge Carol B. Amon, as part of Donaghy’s plea for a lighter sentence. All of the information revealed Tuesday was previously conveyed by Donaghy to federal investigators last July. No one else has been charged with a crime.

Commissioner David Stern, speaking before Game 3 of the N.B.A. finals at Staples Center on Tuesday, dismissed all of the allegations as “baseless.”

According to Donaghy, N.B.A. executives directed referees “to manipulate games” in order to “boost ticket sales and television ratings,” and he cited several examples.

Creating a catch-22 for effective reform of lethal injection protocols

As detailed in this press release, a "team of medical, ethical, and legal scholars argues in PLoS Medicine that in some US states the modification of lethal injection protocols is tantamount to experimentation upon prisoners without the prisoners' consent and without any ethical safeguards." Here is more from the press release:

Drs. Leonidas Koniaris and Teresa Zimmers (University of Miami Miller School of Medicine, Miami, Florida, USA) and colleagues lay out evidence obtained in litigation and from Freedom of Information act requests that suggests that at least 10 states are performing regimens that may be akin to human experimentation....

[E]ven as jurists demand lethal injection protocol changes, say the authors, "corrections officials, governors, and their medical collaborators are left in a legal and ethical quandary -- in order to comply with the law and carry out their duties, they are employing the tools and methods of biomedical inquiry without its ethical safeguards."

Given the current guidelines for human experimentation, they say, "it is difficult to conceive of circumstances in which lethal injection research activities could be carried out in a fashion consistent with these ethical norms, and yet those engaged in such research would seem to be required to do so."

Speaking of jurists demanding lethal injection protocol changes, this AP article details that this has just happen in a state court in Ohio:

Ohio's method of putting prisoners to death is unconstitutional because two of three drugs used in lethal injection can cause pain, a judge ruled Tuesday.

The state's lethal injection process doesn't provide the quick and painless death required by Ohio law, said Lorain County Common Pleas Judge James Burge, who agreed with two inmates who had challenged the procedure. Ohio must stop allowing a combination of drugs and focus instead on a single, anesthetic drug, Burge said.

A message seeking comment was left with state prisons officials. The ruling is likely to be appealed to the Ohio Supreme Court.

June 10, 2008

Extended Second Circuit discussion of "intended loss"

The Second Circuit today in US v. Confredo, No. 06-3201 (2d Cir. June 10, 2008) (available here), has an extended discussion of Apprendi and loss calculations and other intricacies of modern federal sentencing for white-collar offenders. Here is the starting paragraph:

This sentencing appeal primarily concerns a loss calculation under the provision of the Sentencing Guidelines governing an “intended loss” for fraud offenses. See U.S.S.G. § 2F1.1 (1997). The appeal also presents a challenge to an enhancement for offenses committed while released on bail. See id. § 2J1.7. Gary Confredo appeals from the June 29, 2006, amended judgment of the District Court for the Southern District of New York (Leonard B. Sand, District Judge) sentencing him to imprisonment for 205 months following his plea of guilty to various offenses involving fraudulent loan applications. We remand for reconsideration of the intended loss amount.

Based on these posts, I continue to find Professor Wilson's analysis of prison costs and benefits a bit too pithy and summary. In his first post, Wilson makes astute points about mass incarceration tending to be a more "democratic" response to crime, but I wish he would grapple with the reality that voters often do not completely appreciate the economic, social and human costs of very long incarceration terms.

There really should be little doubt that locking up en masse any collection of persons who seem likely to commit crimes will surely reduce crime (outside prisons) somewhat as a matter of pure probabilities. But whether mass incarceration is worth all the costs (and how we can identify a tipping point as to the effectiveness of prison expansion) is the big question that Wilson and most pro-incarceration advocates never fully deal with.